Helen C. Messer, Complainant,v.Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.

Equal Employment Opportunity CommissionOct 27, 2003
01A34206_r (E.E.O.C. Oct. 27, 2003)

01A34206_r

10-27-2003

Helen C. Messer, Complainant, v. Hansford T. Johnson, Acting Secretary, Department of the Navy, Agency.


Helen C. Messer v. Department of the Navy

01A34206

October 27, 2003

.

Helen C. Messer,

Complainant,

v.

Hansford T. Johnson,

Acting Secretary,

Department of the Navy,

Agency.

Appeal No. 01A34206

DECISION

Complainant filed a timely appeal with this Commission from a final

decision (FAD) by the agency dated May 22, 2003, finding that it was

in compliance with the terms of two settlement agreements, executed

on November 9, 2001 and August 12, 2002. See 29 C.F.R. � 1614.402;

29 C.F.R. � 1614.504(b); and 29 C.F.R. � 1614.405.

The November 9, 2001 settlement agreement provided, in pertinent part,

that:

4.a.(4) Speak with [Captain] regarding maintaining a professional

relationship between his point of contact and the Complainant on these

programs.<1>

The August 12, 2002 settlement agreement provided, in pertinent part,

that:

4.a.(4) In the event that an F20 opportunity does not avail itself to

[Complainant], [Complainant] will have first consideration for the

assignment of any additional workload similar to her current role as

point of contact for ACDS training in support of the ILS team. In order

to directly address and alleviate the problem(s) that have brought this

complaint forward, the command will clearly establish and communicate that

the relationship between the Integrated Logistics Coordinator (ILS) and

the Training point of contact are parallel (independent but cooperative)

in nature. The command will clearly communicate to all related personnel

(Complainant's chain of command, the current Tactical Control Systems

Branch Head, and the current ILS Coordinator) that the ILS Coordinator

does not have the authority to directly task, direct or intervene in the

responsibilities of the Training point of contact. The Department Head

will review the workload for the FY03 and FY04 planning cycles ending

1 October 2003 and identify the aforementioned workload if any.<2>

By letter to the agency dated April 18, 2003, complainant alleged without

elaboration that the agency breached provision 4.a.(4) of the November 9,

2001 settlement agreement and provision 4.a.(4) of the August 12, 2002

settlement agreement, and requested that her complaints be reinstated.

In its May 22, 2003 FAD, the agency found no breach. Regarding

provision 4.a.(4) of the November 9, 2001 settlement agreement, the

agency determined that on June 20, 2002, the Commission affirmed the

agency's finding of no breach.

Regarding provision 4.a.(4) of the August 12, 2002 settlement agreement,

the agency found that it was not aware of any specific incident relating

to a breach. The agency, however, stated that on August 28, 2002, an

agency official met with complainant's supervisors and team leader to

review roles and responsibilities in support of tasking sponsored by

PMS461. The agency further stated that after a review of the current

organizational structure, programs, role of Logistics Coordinator

and training support for the projects, each person acknowledged their

understanding of expectations and pledged their support for management

practices.

EEOC Regulation 29 C.F.R. � 1614.504(a) provides that any settlement

agreement knowingly and voluntarily agreed to by the parties, reached at

any stage of the complaint process, shall be binding on both parties.

The Commission has held that a settlement agreement constitutes a

contract between the employee and the agency, to which ordinary rules

of contract construction apply. See Herrington v. Department of Defense,

EEOC Request No. 05960032 (December 9, 1996). The Commission has further

held that it is the intent of the parties as expressed in the contract,

not some unexpressed intention, that controls the contract's construction.

Eggleston v. Department of Veterans Affairs, EEOC Request No. 05900795

(August 23, 1990). In ascertaining the intent of the parties with regard

to the terms of a settlement agreement, the Commission has generally

relied on the plain meaning rule. See Hyon O v. United States Postal

Service, EEOC Request No. 05910787 (December 2, 1991). This rule states

that if the writing appears to be plain and unambiguous on its face,

its meaning must be determined from the four corners of the instrument

without resort to extrinsic evidence of any nature. See Montgomery

Elevator Co. v. Building Eng'g Servs. Co., 730 F.2d 377 (5th Cir. 1984).

Provision 4.a.(4) of the November 9, 2001 settlement agreement

Regarding provision 4.a.(4) of the November 9, 2001 settlement

agreement, we find that the agency properly determined that complainant

filed an appeal with the Commission, regarding breach of the same

provision. Specifically, complainant filed an appeal from the agency's

February 1, 2002 FAD finding no breach of provision 4.a.(4) of the

November 9, 2001 settlement agreement to the Commission. The record

reveals that complainant claimed that while the agency had accomplished

the requirements of provision 4.a.(4), there was no positive, working

relationship between her and the point of contact. The Commission affirmed

the agency's finding of no breach of provision 4.a.(4) of the settlement

agreement. Messer v. Department of the Navy, EEOC Appeal No. 01A22178

(June 11, 2002). Upon review, we find that the present breach claim

regarding provision 4.a.(4) has already been addressed by the Commission

in its decision of June 11, 2002, wherein it found no breach. Therefore,

the Commission determines that no available remedy is currently available

to complainant relating to this provision.

Provision 4.a.(4) of the August 12, 2002 settlement agreement

Regarding provision 4.a.(4) of the August 12, 2002 settlement agreement,

we note in its FAD, the agency stated that an agency official met

with complainant's supervisors and team leader to review roles

and responsibilities in support of tasking sponsored by PMS461. The

agency further stated that after a review of the current organizational

structure, programs, role of Logistics Coordinator and training support

for the projects, each person acknowledged their understanding of

expectations and pledged their support for management practices per

provision 4.a.(4) of the August 12, 2002 settlement agreement.

The Commission determines, however, that the record contains no

documentary evidence reflecting the agency fulfilled its affirmative

obligations identified in this provision. Furthermore, the agency

in its FAD is silent concerning the agency obligations identified in

the first sentence of provision 4.a.(4). Specifically, we note that

the record contains no evidence reflecting that the agency provided

complainant with the �first consideration� for the assignment of any

additional workload similar to her current role as point of contact

for ACDS training in support of the ILS team in the event that an F20

opportunity does not avail itself. We are therefore unable to ascertain

whether the agency complied with provision 4.a.(4) of the August 12,

2002 settlement agreement, given this lack of evidence.

Accordingly, the agency's final decision finding that it did not breach

provision 4.a.(4) of the November 9, 2001 settlement agreement is

AFFIRMED. The agency's final decision finding that it did not breach

provision 4.a.(4) of the August 12, 2002 settlement agreement is

VACATED. The matter is REMANDED to the agency for further processing in

accordance with this decision and the ORDER below.

ORDER

Within thirty (30) calendar days after the date this decision becomes

final the agency is ORDERED to take the following action:

The agency shall supplement the record with evidence clearly showing

that it has complied with provision 4.a.(4) of the August 12, 2002

settlement agreement. In particular, the agency must provide documentation

reflecting that complainant was provided with the first consideration for

the assignment of any additional workload similar to her current role as

point of contact for ACDS training in support of the ILS team in the event

that an F20 opportunity does not avail itself; that the command clearly

established and communicated that the relationship between the Integrated

Logistics Coordinator and the Training point of contact are parallel;

that the command clearly communicated to all related personnel that the

Integrated Logistics Coordinator does not have the authority to directly

task, direct or intervene in the responsibilities of the Training point

of contact; and that the Department Head will review the workload for

the Fiscal Years 2003 and 2004 planning cycles ending October 1, 2003,

and identify any workload, as identified above.

Thereafter, the agency shall issue a new decision concerning whether it

breached provision 4.a.(4) of the August 12, 2002 settlement agreement.

A copy of the new decision must be sent to the Compliance Officer as

referenced herein.

IMPLEMENTATION OF THE COMMISSION'S DECISION (K0501)

Compliance with the Commission's corrective action is mandatory.

The agency shall submit its compliance report within thirty (30)

calendar days of the completion of all ordered corrective action. The

report shall be submitted to the Compliance Officer, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. The agency's report must contain supporting

documentation, and the agency must send a copy of all submissions to

the complainant. If the agency does not comply with the Commission's

order, the complainant may petition the Commission for enforcement

of the order. 29 C.F.R. � 1614.503(a). The complainant also has the

right to file a civil action to enforce compliance with the Commission's

order prior to or following an administrative petition for enforcement.

See 29 C.F.R. �� 1614.407, 1614.408, and 29 C.F.R. � 1614.503(g).

Alternatively, the complainant has the right to file a civil action on

the underlying complaint in accordance with the paragraph below entitled

"Right to File A Civil Action." 29 C.F.R. �� 1614.407 and 1614.408.

A civil action for enforcement or a civil action on the underlying

complaint is subject to the deadline stated in 42 U.S.C. 2000e-16(c)

(1994 & Supp. IV 1999). If the complainant files a civil action, the

administrative processing of the complaint, including any petition for

enforcement, will be terminated. See 29 C.F.R. � 1614.409.

STATEMENT OF RIGHTS - ON APPEAL

RECONSIDERATION (M0701)

The Commission may, in its discretion, reconsider the decision in this

case if the complainant or the agency submits a written request containing

arguments or evidence which tend to establish that:

1. The appellate decision involved a clearly erroneous interpretation

of material fact or law; or

2. The appellate decision will have a substantial impact on the policies,

practices, or operations of the agency.

Requests to reconsider, with supporting statement or brief, must be filed

with the Office of Federal Operations (OFO) within thirty (30) calendar

days of receipt of this decision or within twenty (20) calendar days of

receipt of another party's timely request for reconsideration. See 29

C.F.R. � 1614.405; Equal Employment Opportunity Management Directive for

29 C.F.R. Part 1614 (EEO MD-110), 9-18 (November 9, 1999). All requests

and arguments must be submitted to the Director, Office of Federal

Operations, Equal Employment Opportunity Commission, P.O. Box 19848,

Washington, D.C. 20036. In the absence of a legible postmark, the

request to reconsider shall be deemed timely filed if it is received by

mail within five days of the expiration of the applicable filing period.

See 29 C.F.R. � 1614.604. The request or opposition must also include

proof of service on the other party.

Failure to file within the time period will result in dismissal of your

request for reconsideration as untimely, unless extenuating circumstances

prevented the timely filing of the request. Any supporting documentation

must be submitted with your request for reconsideration. The Commission

will consider requests for reconsideration filed after the deadline only

in very limited circumstances. See 29 C.F.R. � 1614.604(c).

COMPLAINANT'S RIGHT TO FILE A CIVIL ACTION (T0900)

This decision affirms the agency's final decision/action in part, but it

also requires the agency to continue its administrative processing of a

portion of your complaint. You have the right to file a civil action in

an appropriate United States District Court within ninety (90) calendar

days from the date that you receive this decision on both that portion

of your complaint which the Commission has affirmed and that portion

of the complaint which has been remanded for continued administrative

processing. In the alternative, you may file a civil action after

one hundred and eighty (180) calendar days of the date you filed your

complaint with the agency, or your appeal with the Commission, until

such time as the agency issues its final decision on your complaint.

If you file a civil action, you must name as the defendant in the

complaint the person who is the official agency head or department head,

identifying that person by his or her full name and official title.

Failure to do so may result in the dismissal of your case in court.

"Agency" or "department" means the national organization, and not the

local office, facility or department in which you work. If you file

a request to reconsider and also file a civil action, filing a civil

action will terminate the administrative processing of your complaint.

RIGHT TO REQUEST COUNSEL (Z1199)

If you decide to file a civil action, and if you do not have or cannot

afford the services of an attorney, you may request that the Court appoint

an attorney to represent you and that the Court permit you to file the

action without payment of fees, costs, or other security. See Title VII

of the Civil Rights Act of 1964, as amended, 42 U.S.C. � 2000e et seq.;

the Rehabilitation Act of 1973, as amended, 29 U.S.C. �� 791, 794(c).

The grant or denial of the request is within the sole discretion of

the Court. Filing a request for an attorney does not extend your time

in which to file a civil action. Both the request and the civil action

must be filed within the time limits as stated in the paragraph above

("Right to File A Civil Action").

FOR THE COMMISSION:

______________________________

Carlton M. Hadden, Director

Office of Federal Operations

October 27, 2003

__________________

Date

1The November 9, 2001 settlement agreement

also provides that Combat Direction Systems Activity to return the

responsibility of the Block 0, Block 1 and SDE training programs

to complainant under a different supervisor by December 15, 2001;

and restore complainant's 10 days leave by December 15, 2001. Those

provisions are not at issue in the instant appeal.

2The August 12, 2002 settlement agreement also provides for a personnel

specialist and complainant's immediate supervisor to work with complainant

to develop a training curriculum leading to an undergraduate degree

and meeting 1550 series criteria; the training office would contact an

HRSC East training coordinator within 15 days, to negotiate a curriculum

to improve conflict handling and leadership skills for current Branch

Heads and schedule such training; and an agency official would explore

opportunities for complainant within the F20 Division's Interoperability

Branch. Those provisions are not at issue in the instant appeal.